The retention process has been on shaky ground since its inception more than 40 years ago. That is when the Tennessee Plan was adopted as an end run around the state constitution's dictates that all judges "shall be elected by the people of Tennessee."

Whether the intent of the plan was, as its originators stated, to remove partisan politics from the judiciary, or whether it was to thwart the minority party (at that time, Republicans), Tennesseans are sadly beginning to reap the bitter fruits of the decision by the state's powerbrokers to act on their own — instead of trusting the people of Tennessee either to agree to change the constitution to allow merit selection, or to in fact elect their judges.

Under the retention process, Tennessee voters' only input in who sits on the state Supreme Court, Court of Appeals and Court of Criminal Appeals is after an appointed judge has served eight years. Then, voters can vote to "retain" or "replace." If voters decide "replace," (which has only happened once), a replacement is appointed, not elected.

A complex system has evolved over the life of the Tennessee Plan to set checks and balances on judge selection — the Judicial Nominating Commission, the Judicial Performance Evaluation Commission (JPEC), the Board of Judicial Conduct (BJC) — with members variously appointed by the governor and the speakers of the state Senate and House, but it's easy to see that even when the intent is nonpartisanship, party politics are going to be involved.

In the case of the JPEC, its latest composition was illegal because the speakers were more concerned about seating members who think as they do than adhering to the law governing the panel's racial and gender makeup. That backfired on Lt. Gov. Ron Ramsey when JPEC did not vote the way he had planned, instead recommending Justices Gary Wade, Cornelia Clark and Sharon Lee go up for retention.

Because Wade, Clark and Lee will not be in Ramsey's pocket on a variety of matters before the court, but especially on selection of the state attorney general, Ramsey has helped open the door for big, out-of-state money to campaign for the justices' replacement. Ramsey also is counting on most voters not looking beyond at the campaign's deceptive ads, which for example falsely accuse Wade, Clark and Lee of being soft on crime. In most states, justices who support the death penalty in 90 percent of cases before them would be called just the opposite.

In fact, based on these justices' decision-making on the bench, they should be retained. Their rulings exhibit none of the "liberal activism" that Ramsey and his cronies complain of. But that does not make the retention process any cleaner.

While their performance on cases brought before the court merits their retention, we think that the justices have not adequately performed their duty to supervise the state's court system through their responsibility to administer the rules governing the court system and judicial conduct. The Supreme Court should have intervened and demanded a Judicial Performance Evaluation Commission that met constitutional requirements. We also question Chief Justice Wade's decision to make what appear to be political statements about some JPEC evaluations with which he disagreed.

The system has become corrupted by pretending that politics don't play a role. It has allowed hamhanded politicos like Ramsey to dream of controlling the court, while good judges' ability to be impartial is compromised by the secrecy that it takes to keep them in office.

The Tennessean editorial board is committed to an informed and involved electorate, so while we believe that the judicial selection system must be changed, and we have substantial misgivings about the legality of the retention election, we believe that these candidates should be retained, not replaced on the basis of erroneous charges made by Ramsey and his allies: